Cagle v. State

• Decision Date: 16 February 1944
• Docket Number: No. 22490.,22490.
• Citation: 180 S.W.2d 928
• Parties: CAGLE v. STATE.
• Court: Texas Court of Criminal Appeals

180 S.W.2d 928

CAGLE v. STATE.

No. 22490.

Court of Criminal Appeals of Texas.

February 16, 1944.

Rehearing Granted April 19, 1944.

Rehearing Denied June 7, 1944.

COPYRIGHT MATERIAL OMITTED

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

Rufus Cagle was convicted of keeping and exhibiting a policy game in violation of Vernon's Ann.P.C. art. 619, and he appeals.

Affirmed.

J. J. Collins, of Lufkin, and H. J. Bernard, Henry E. Kahn, E. T. Branch, and J. E. Winfree, all of Houston, for appellant.

Dan W. Jackson, Criminal Dist. Atty., and King C. Haynie and O'Brien Stevens, Asst. Criminal Dist. Attys., all of Houston, and Ernest S. Goens, State's Atty., of Austin (A. C. Winborn, Criminal Dist. Atty., King C. Haynie, Asst. Criminal Dist. Atty., and Ernest S. Goens, State's Atty., all of Austin, on motion for rehearing only) for the State.

DAVIDSON, Judge.

Under an indictment charging Rufus Cagle and Frank Cagle, jointly, with the offense of keeping and exhibiting a policy game, under the provisions of Art. 619, Penal Code, Rufus Cagle was separately tried, convicted, and his punishment assessed at confinement in the state penitentiary for a term of two years.

The term "policy game" is not defined by statute. By judicial interpretation, it is the game of betting upon the appearance of numbers, the bettor betting against the keeper that certain numbers selected by the bettor will appear out of a list of numbers, usually from 1 to 78, drawn or to be drawn by the keeper, by chance or otherwise.

It was the State's contention that Frank Cagle and Rufus Cagle were jointly operating, that is, keeping and exhibiting, a policy game known as "Big Four".

It appears that there were two drawings of numbers each day, except Sunday: one in the forenoon and the other in the afternoon. The closing time for the taking of bets was about noon and 6 P.M., respectively. Bets were made through "writers", there being about forty-seven so engaged in writing for the "Big Four". Eleven of these "writers" testified for the State upon the trial of this case. A canvas bag, with a number thereon, was furnished each writer. This number identified the writer with the operators of the game. Each writer would contact the individual bettor and would receive from him the numbers selected and the amount bet on that selection. Bets could be made upon the appearance of the numbers, in several different ways, the odds to the winner being governed by the particular method employed. The writer would make an original of the selection made by the bettor, which he placed in the canvas bag, together with the amount so bet, after deducting twenty per cent thereof for himself. A copy of the selection was retained by the bettor and the writer. Thus the keepers of the game, the writer, and the bettor were enabled, after the list of numbers had been drawn and published, to determine whether the bettor had won or lost. About closing time for each drawing, the writer would "close his book", that is, he would stop taking bets for that drawing, and would deliver his canvas bag to, what we will term, the "collector", who, in this case, was one Ivory Slater. After taking up the bag, Slater would, within a short time, return, to the writer, a canvas bag, in which was a printed copy of the numbers drawn for the period just closed. With this list, the writer would them make payment to those bettors who had won. The amount so paid out by the writer was deducted by him from receipts of subsequent bets. No writer knew the identity of, or had contact with, the keepers or exhibitors of the game. All instructions and communications between them were made by and through notes or memoranda placed in the canvas bag from time to time. Among such communications transpiring were that the writers were directed to furnish their social security numbers, and were given the name and telephone number of a lawyer to call in the event they were arrested, and who would furnish bail for them.

The foregoing facts are shown, primarily, by the testimony of the eleven writers who testified upon the trial of the case, and who referred to their duties as selling lottery tickets, and who would have testified that they were engaged in selling lottery tickets.

The "Big Four" had been thus operating in Harris County for more than a year prior to this prosecution.

Appellant insists that such facts do not show keeping or exhibiting a policy game; and that, if any offense were shown, it was that of a lottery, and for which the prosecution should have been instituted.

With this contention we are not in accord. It is true that the numbers may have been drawn by chance, and that other elements of the offense of a lottery may have been shown to exist; yet the facts also showed all the constituent elements of a policy game. Schwarz v. State, 136 Tex.Cr.R. 260, 124 S.W.2d 392; Hill v. State, 143 Tex.Cr.R. 412, 158 S.W.2d 810; Canizares v. State, 143 Tex.Cr.R. 76, 157 S.W.2d 385; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575. It must be remembered that it is the province of the State to carve out of, and to prosecute for, any offense growing out of a single transaction, and that it does not lie with the accused to direct the State in that selection. Having concluded that the facts show that the offense of keeping and exhibiting a policy game was committed by someone, it remains to be determined whether the facts show that the appellant, Rufus Cagle, was criminally connected therewith; and, as to this, these additional facts appear:

Several weeks prior to January 20, 1942, detectives of the City of Houston began a systematic trailing and watch of the acts, conduct, and movements of Frank Cagle, Rufus Cagle, and Ivory Slater; as a result of which they were enabled to determine that each day, about the closing time or deadline for the taking of bets by the writers, Rufus Cagle would go to a house situated on "Lillian Road" and would leave said house, with a suitcase, which he would deliver to Frank Cagle, and, at the same time, would receive, from Frank Cagle, a suitcase; that, about said closing time, Frank Cagle would contact Ivory Slater, and would receive from him a suitcase; and that, thereafter, Frank Cagle would deliver, to Ivory Slater, the suitcase, or one similar, that Frank Cagle had received from Rufus Cagle.

On the night of January 20, 1942, peace officers, by virtue of a search warrant, made a search of: the "Lillian Road" house, the residence of Frank Cagle, and the residence of Rufus Cagle (the appellant).

The "Lillian Road" house, although having some household furniture in some of the rooms, did not appear to be occupied by anyone as a place of residence. In this house, they found: a hand printing press; sheets of paper of the same kind and size as those upon which the numbers were printed and delivered to the writers; two grips, or suitcases, containing manila envelopes similar to those used by some of the writers; canvas bags, with numbers thereon, and identified by some of the writers as having been assigned to them; and complete equipment for the drawing and printing of the numbers on the printed lists.

In Frank Cagle's home, they found: duplicate copies of "Employer's Tax Return" to the government, showing that Frank Cagle had made returns of taxable wages paid by him, as employer, to his employees, which listed, among others, the names of the eleven writers who testified upon the trial, together with those of Ivory Slater and Rufus Cagle. Something like $9,400 in cash was found in a small safe.

In Rufus Cagle's home, they found, in the attic thereof, a well-equipped office, access to which was gained by means of a movable stairway. In that office, they found: a large quantity of slips of paper, which were identified by the writers as being the originals written by them in taking bets for the "Big Four", and which slips of paper showed the numbers selected by the bettors, and which were, by the writers, placed in the canvas bag assigned to each of them; several of the canvas bags bearing the numbers, and which were identified by the writers as having been assigned to and used by them in reporting the bets; a suitcase similar to that the officers had seen passed between Ivory Slater, Rufus Cagle, and Frank Cagle; a canvas-back book, in which were listed the names of various people, including the names of the eleven writers, opposite each of which name was a social security number and amounts shown in figures; also another book, corresponding, in many respects, with the canvas-back book.

In addition to the testimony showing the result of the searches mentioned, there were introduced in evidence the monthly returns made by Frank Cagle to the Texas Unemployment Compensation Commission, showing the employees' names and the numbers assigned and the amounts paid to his employees. The names of the eleven writers and that of Ivory Slater were included therein.

The foregoing constitutes a statement of the facts upon which the State relied to connect Frank Cagle and Rufus Cagle with the crime charged.

The appellant did not testify as a witness in his own behalf, nor did he offer any affirmative defensive testimony.

The facts are sufficient to show— and a reasonable deduction to be drawn therefrom is—that it was appellant's job or duty, in connection with the unlawful enterprise: to furnish his home as the headquarters and office therefor; to go to the "Lillian Road" house, and there to draw the numbers and to print the tickets showing the winning numbers, and to get them into the hands of Frank Cagle, who in turn would deliver them to Ivory Slater, by whom they would be distributed to the writers; and, after Frank Cagle had received, from Ivory Slater, the suitcase containing the canvas bags with the money so bet and the slips of paper showing the selections of the bettors, he would deliver same to Rufus Cagle, who would carry...